Arnerich v DHC Assets Limited - [2025] NZCA 104

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA322/2022
[2025] NZCA 104

BETWEEN	ANTONY IVO ARNERICH Appellant
AND	DHC ASSETS LIMITED Respondent

Hearing:	21 June 2023
Court:	Goddard, Brewer and Osborne JJ
Counsel:	R J Hollyman KC and J D Mcbride for Appellant F J Thorp and L J Turner for Respondent
Judgment:	9 April 2025 at 3.00 pm

JUDGMENT OF THE COURT

AMr Arnerich’s appeal is allowed in part.
BDHC’s cross-appeal is allowed in part.
C The order made by the High Court at [128](a)(iv) of the second High Court judgment is set aside, and replaced with an award of the amount of P&G costs actually recovered by Vaco from ASB by payment or credit, and not already paid to DHC or included in the amount awarded by the adjudicator, plus GST on that amount.
DThe order made by the High Court at [128](a)(v) of the second High Court judgment is set aside, and replaced with an order that DHC is entitled to statutory interest on the amount referred to in the substituted order set out above from the date on which the relevant payment or credit was received by Vaco until the date of payment.
EThe proceeding is remitted back to the High Court to determine the amounts payable pursuant to the substituted orders set out above.
FThe order for costs in the High Court is set aside. Costs in that Court are to be determined by that Court in light of this judgment.
GCosts in this Court are reserved, and are to be determined in accordance with the process set out at [308] of this judgment.

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REASONS OF THE COURT

(Given by Goddard J)

Table of contents

Para no

Introduction and summary

Background
DHC’s proceedings against Mr Arnerich

Summary

Background

The Lincoln Road project and the construction contract
DHC carries out the construction work — disputes develop
Further payment claims and disputes
DHC’s letter to Mr Beagley (6 March 2013) enclosing extension of time related materials and submissions
DHC’s Final Payment Claim — Payment Claim 17
Vaco sale of Lincoln Road property
Payments made by Vaco following sale of Lincoln Road property
Final Payment Schedule 17
DHC’s follow-up email on 8 August 2013
Liquidation of Vaco
Adjudication proceedings
DHC refers its claims to arbitration

DHC’s proceedings against Mr Arnerich

DHC’s allegations against Mr Arnerich
Mr Arnerich’s defence

First High Court judgment

Breach of s 131 of the Companies Act
Relief under s 301 of the Companies Act

Court of Appeal 2021 judgment

Second High Court judgment

DHC’s claims at the second hearing
Mr Arnerich’s response at the second hearing
The Judge’s decision

Issues on appeal

The construction contract

Does the adjudicator’s determination conclusively determine certain issues?

The issue

Submissions

Discussion

Did the construction contract permit DHC to claim extensions of time for delays caused by variations?

The issue

Submissions

Discussion

Has DHC established an entitlement to extension(s) of time?

The issue

Discussion

Did the construction contract provide for DHC to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arnerich v DHC Assets Limited

Details

AGLC: Arnerich v DHC Assets Limited [2025] NZCA 104
Case: [2025] NZCA 104
Decision Date: 9 April 2025 at 3.00 pm

CaseChat Overview and Summary

The Court of Appeal allowed Mr Arnerich’s appeal in part and DHC’s cross-appeal in part. The Court found that the construction contract precluded DHC from claiming time-related costs and other preliminary and general (P&G) costs. The Court found that Mr Arnerich had agreed that DHC could claim P&G costs in relation to variations requested by ASB, provided ASB paid them, and Vaco passed them on to DHC. However, Mr Arnerich did not agree to Vaco assuming responsibility for P&G costs not recovered from ASB. The Court found that DHC was entitled to recover some P&G costs paid by ASB to Vaco, to the extent those amounts were not already paid to DHC or included in the adjudicator’s award. The Court also found that DHC was entitled to statutory interest on the amount of P&G costs recoverable. The Court set aside certain interest awards made by the High Court and remitted the proceeding back to determine the amounts payable under the substituted orders. The Court reserved costs in this Court and directed that they be determined by the High Court in light of this judgment.

Orders